United States District Court, E.D. Pennsylvania
March 3, 2004.
CATHERINE KUHN, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security Administration, Defendant
The opinion of the court was delivered by: JAN DUBOIS, District Judge
ORDER AND MEMORANDUM ORDER
AND NOW, this 3rd day of March, 2004, upon
consideration of Plaintiff's Motion for Summary Judgment (Document No.
17, filed May 14, 2003), Defendant's Brief in Opposition to Plaintiff's
Motion and in Support of Defendant's Motion for Summary Judgment
(Document No. 21, filed July 8, 2003), plaintiff's Reply Brief in Support
of Plaintiff's Motion for Summary Judgment (Document No. 23, filed July
29, 2003), the Report and Recommendation of United States Magistrate
Judge Linda K. Caracappa (Document No. 24, filed July 31, 2003),
Plaintiff's Objections to Report and Recommendation of United States
Magistrate Judge (Document No. 25, filed August 18, 2003), and
Defendant's Response to Plaintiff's Objections to the Report and
Recommendation of Magistrate Judge Linda K. Caracappa (Document No. 27,
filed September 17, 2003), IT IS ORDERED as follows:
1. The Report and Recommendation of United States Magistrate Judge
Caracappa dated September 17, 2003 is REJECTED;
2. Defendant's Motion for Summary Judgment is DENIED;
3. That part of Plaintiff's Motion for Summary Judgment in which
plaintiff seeks a remand is GRANTED. The case is
REMANDED to Jo Anne B. Barnhart, Commissioner of the Social
Security Administration, in accordance with the fourth sentence of
42 U.S.C. § 405(g) for further proceedings consistent with this Order
and Memorandum; and
4. In all other respects, Plaintiff's Motion for Summary Judgment is
Plaintiff, Catherine Kuhn, brought this action, pursuant to
42 U.S.C. § 405(g), appealing the denial of her claim for supplemental
security income ("SSI") benefits by defendant, the Commissioner of the
Social Security Administration ("Commissioner"). Under
42 U.S.C. § 1383(c)(1)(B)(3), decisions of the Commissioner relating to SSI
benefits are subject to judicial review. Maniaci v. Apfel, 27 F. Supp.2d 554
(E.D. Pa. 1998).
Currently before the Court are the parties' motions for summary
judgment. Magistrate Judge Linda K. Caracappa, in a Report and
Recommendation dated July 31, 2003, recommended that defendant's Motion
for Summary Judgment be granted and plaintiff's Motion for Summary
Judgment be denied. For the reasons set forth below, the Court rejects
the Report and Recommendation of Magistrate Judge Caracappa, grants
plaintiff's Motion for Summary Judgment to the extent it seeks a remand,
denies defendant's Motion for Summary Judgment, and remands the case to
the Commissioner for further proceedings consistent with this Memorandum.
Plaintiff, a sixty-one year old woman, worked as a merchandiser before
she slipped and fell on her back at work while working at K-Mart on March
30, 1988. (R. at 52, 55) As a result of this accident, plaintiff suffers
back and neck pain and has been unable to return to work. (R. at 56, 57)
She also experiences pain and numbness in both hands. (R. at 57-58)
Plaintiff filed an application for disability insurance benefits
("DIB") under Title VII of the Social Security Act on November 4, 1992.
(R. at 154) Plaintiff's application was denied initially and on
reconsideration. (R. at 158-60, 164-66). Plaintiff requested an
administrative hearing to review these decisions. (R. at 167-68)
The first hearing was held before Administrative Law Judge Hazel C.
Strauss ("ALJ") on June 6, 1994. (R. at 42-104) On June 9, 1995, the ALJ
issued a decision finding that plaintiff was not disabled. (R. at 537-48)
This decision was based, inter alia, on the ALJ's finding that
plaintiff had no severe impairments. (R. at 541) Plaintiff appealed this
decision and, on review, the Appeals Council vacated the ALJ's decision
and remanded plaintiff's claim for a new hearing. (R. at 554-57) The
Appeals Council concluded "that the evidence of record is more than
sufficient to establish that the claimant had a severe impairment prior
to December 31, 1993, and that further consideration under the sequential
evaluation process is necessary." (R. at 556)
The ALJ conducted a second hearing on September 17, 1998. (R. at
105-53) At this hearing, the ALJ heard testimony from plaintiff and her
husband; Dr. Stanley Askin, a specialist in orthopedic surgery; and
William Slaven, a vocational expert. (R. at 18) The ALJ also considered
reports from, inter alia, Dr. Murray Glickman, an orthopedist;
Dr. Charles Gonzales, a radiologist and neurosurgeon; Dr. Pushpa
Thakarar, a rehabilitation specialist; and Dr. Vincent Baldino,
plaintiff's treating physician. (R. at 21-22)
The ALT again denied plaintiff's claim in a decision dated March 26,
1999. (R. at 15-30) Although the ALT found that plaintiff had severe back
and neck impairments, the ALT concluded that plaintiff's carpal tunnel
syndrome*fn1 ("CTS") was non-severe. The ALT's assessment of plaintiff's
CTS was based, inter alia, on the medical records, plaintiff's
statement to Dr. Thakarar that she was independent in her daily
activities, the absence of evidence of treatment for her CTS, and the
fact that plaintiff never referred to pain in her hands when filing
disability reports. (R. at 23, Exhibit 8)
The ALT concluded that plaintiff's November 10, 1993 electromyogram
("EMG") and nerve conduction study that resulted in findings "consistent
with bilateral CTS, moderate to severe in the right, moderate on the
left," did not warrant a finding that plaintiff's CTS was a severe
impairment under Social Security regulations. (R. at 23, Exhibit 20) In
explaining this conclusion, the ALT relied primarily on Dr. Asian's
testimony that these results were not "strong findings indicating nerve
damage" and plaintiff's CTS was "easily remediable" by carpal tunnel
release surgery. (R. at 23, 120, 122) The ALT also noted that plaintiff
received only "conservative treatment" and "failed to seek the advice of
an appropriate expert such as an orthopedist or neurologist, as someone
who has such severe, prolonged pain as she described would be expected to
do." (R. at 26) As further evidence that plaintiff's CTS was not as
severe as she claimed, the ALT pointed to plaintiff's failure to
investigate hand surgery after a 1997
discussion with her treating physician, Dr. Baldino, in which he
referred her to a hand surgeon. (R. at 27)
The ALT also found that plaintiff's back and neck impairments were
severe but not as functionally limiting as plaintiff claimed. Although
plaintiff testified that she could not even perform sedentary work (R. at
20), the ALT rejected this testimony on the ground that it conflicted
with the testimony of Dr. Askin, the objective medical evidence, and
plaintiff's own testimony about her daily activities. Dr. Askin reviewed
all the test results in plaintiff's record and concluded that these
results did not support the functional limitations described by
plaintiff. (R. at 134) The ALT found that the reports of two specialists
consulted by plaintiff conflicted with her testimony and the testimony of
her treating physician, Dr. Baldino. Dr. Glickman, one of those
specialists, concluded that there "was no orthopedic process that would
prevent the claimant from being able to resume her normal activities."
(R. at 24, Exhibit 19) This finding was consistent with the finding of
the second specialist, Dr. Gonzalez, that a CT examination of plaintiff's
spine was "entirely within normal limits." (R. at 24, Exhibit 19) The ALT
credited the testimony of these specialists over the opinion of
plaintiff's treating physician, Dr. Baldino, because Dr. Baldino's
opinion was based primarily on plaintiff's subjective complaints. (R. at
25) The ALT also found that plaintiff's subjective complaints were "not
wholly credible" based on the conservative treatment she sought. (R. at
26) In addition, plaintiff's testimony concerning her daily activities,
including feeding and dressing herself, cooking, sweeping, and shopping,
was not consistent with the inability to do any work. (R. at 26)
Although the ALT found that plaintiff's impairments were severe enough
to prevent her from returning to work in her former occupation as a
merchandiser, she found that plaintiff
retained the residual functional capacity to perform a full range
of light work activity. (R. at 27) Based on this finding and plaintiff's
age, education, and past work experience, the ALT concluded that
plaintiff could have performed all the unskilled, light occupations
listed in the Commissioner's Medical Vocational Guidelines. (R. at 27)
Notwithstanding this finding, the ALT asked the vocational expert ("VE")
to consider an alternative hypothetical that credited plaintiff's
testimony. The ALT asked the expert to assume that plaintiff's ability to
perform light work was subject to the further limitations "that she was
able to walk approximately 8 blocks daily, could stand 10 to 15 minutes
at a time, could sit for 20 to 30 minutes at a time, could lift and carry
10 pounds for about 12 feet, and could climb stairs slowly holding to a
railing." (R. at 27) The ALT did not include in the hypothetical question
asked of the VE any limitations relating to plaintiff's CTS because she
determined the condition was "easily remediable and should not preclude
her ability to work." (R. at 27) In response to the hypothetical
question, the VE found that plaintiff could work as a ticket seller, self
service gasoline cashier, and ticket taker and that these jobs were
available in significant numbers in the local and national economies. (R.
Plaintiff appealed the decision of the ALT to the Appeals Council. This
time the Appeals Council denied plaintiff's request for review. As a
result, the ALT's decision became the "final decision" of the
Commissioner. (R. at 10-12)
The instant action was filed on August 22, 2002. On May 14, 2003,
plaintiff filed a Motion for Summary Judgment. In her Motion for Summary
Judgment, plaintiff disputed the ALT's finding that her CTS was
non-severe and argued that the ALT overestimated her residual functional
capacity. Specifically, plaintiff claimed the ALJ ignored an explicit
finding by the Appeals Council that her CTS was severe and applied an
incorrect severity standard to this
condition. With regard to the ALJ's analysis of her functional
capacity, plaintiff argued that the ALT ignored positive findings from a
November 1993 magnetic resonance imaging ("MRI") exam, improperly
rejected the opinion of her treating physician, failed to include all of
her limitations in the hypothetical question to the VE, failed to
properly credit the testimony of plaintiff and her husband, and neglected
to consider a finding of disability by the Pennsylvania Department of
Labor and Industry.
The Court referred the matter to United States Magistrate Judge Linda
K. Caracappa for a report and recommendation pursuant to
28 U.S.C. § 636(b)(1)(B). Judge Caracappa issued a Report and Recommendation
on July 31, 2003.
Judge Caracappa concluded that the ALJ's assessment of plaintiff's CTS
was supported by substantial evidence. That determination was based on
plaintiff's conservative treatment regimen, her daily activities, the
examination and report of Dr. Thakarar, and the testimony of Dr. Askin.
Magistrate Judge's Report at 13. Judge Caracappa did not discuss the
Appeals Council's opinion "that the evidence of record is more than
sufficient to establish that the claimant had a severe impairment prior
to December 31, 1993, and that further consideration under the sequential
evaluation process is necessary." (R. at 556) With respect to plaintiff's
functional capabilities, Judge Caracappa found "the ALJ correctly gave
Dr. Baldino's assessment less weight since it [was] not supported by the
objective testing in the record." Id. at 14. She also found
that plaintiff's complaints of pain were not supported by the objective
evidence "the evidence indicates that plaintiff has a back and/or
neck condition that may reasonably cause some degree of pain, but it does
not establish that it is of a severity to prevent her from performing
light work." Id. at 16. Although Judge Caracappa stated that
the "hypothetical accurately reflected plaintiff's
limitations that are supported by the evidence," she did not
discuss the failure to include CTS in the hypothetical. Id. at
17. Judge Caracappa also failed to discuss the testimony of plaintiff's
husband that corroborated plaintiff's statements about her pain and daily
activities or the finding by the Pennsylvania Department of Labor that
plaintiff was disabled.
Based on the above analysis, Judge Caracappa recommended that the Court
grant defendant's Motion for Summary Judgment and deny plaintiff's Motion
for Summary Judgment. Plaintiff filed Objections to the Magistrate
Judge's Report and Recommendation on August 18, 2003. In the Objections,
plaintiff repeated the arguments she made in her Motion for Summary
Judgment and presented the additional argument that her CTS should have
been included in the hypothetical question to the VE even if this
condition was not severe. PL's Objections at 11 n.8, 13.
For the reasons set forth in this Memorandum, the Court rejects the
Report and Recommendation of Magistrate Judge Caracappa, grants
plaintiff's Motion for Summary Judgment to the extent it seeks a remand,
denies defendant's Motion for Summary Judgment, and remands the case to
the Commissioner for further proceedings consistent with this Memorandum.
III. STANDARD OF REVIEW
The role of the Court on judicial review of the Commissioner's decision
is to determine whether it is supported by substantial evidence.
Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); Newhouse
v. Heckler, 753 F.2d 283, 1285 (3d Cir. 1985). Substantial evidence
is defined as the relevant evidence which a reasonable mind might accept
as adequate to support a conclusion. Richardson v. Perales,
402 U.S. 389, 401 (1971); Kangas v. Bowen, 823 F.2d 775, 777 (3d
Cir. 1987); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981);
Dobrowolsky v. Califano,
606 F.2d 403, 406 (3d Cir. 1979). It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance of the
evidence. Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.
1971), cert. denied, 402 U.S. 976 (1971); Jones v.
Harris, 497 F. Supp. 161, 167 (E.D. Pa. 1980). "[I]t must be enough
to justify, if the trial were to a jury, a refusal to direct a verdict
when the conclusion sought to be drawn from it is one of fact for the
jury." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477
(1951). "[T]he evidence must be sufficient to support the conclusion of a
reasonable person after considering the evidentiary record as a whole,
not just the evidence that is consistent with the agency's finding."
Id. at 1190.
A. DETERMINATION OF DISABILITY
To establish a disability under the Social Security Act,
42 U.S.C. § 401-433, a claimant must demonstrate that there is some "medically
determinable basis for an impairment that prevents him from engaging in
any `substantial gainful activity' for a statutory twelve-month period."
Fargnoli v. Halter, 247 F.3d 34, 38-39 (3d Cir. 2001) (quoting
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)); see
also 20 C.F.R. § 404.1505(a). "A claimant is considered unable
to engage in any substantial gainful activity `only if his physical or
mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.'" Fargnoli,
247 F.3d at 39 (quoting 42 U.S.C. § 423(d)(2)(A)).
The Commissioner's regulations provide a five step sequential
evaluation process for determining whether a claimant is disabled and
entitled to benefits. 20 C.F.R. § 404.1520. Step one states that an
individual who is working will not be found disabled regardless of
findings. 20 C.F.R. § 404.1520(b). Step two requires the
Commissioner to decide if the claimant is suffering from a "severe
impairment." Only claimants with severe impairments are eligible for
benefits. 20 C.F.R. § 404.1520(c). In step three, a claimant's
impairment or combination of impairments is compared with a list of
impairments "presumed severe enough to preclude any gainful work."
Fargnoli, 247 F.3d at 39 (quoting Plummer, 186 F.3d
at 428), 20 C.F.R. § 404.1520(d). If the claimant does not suffer
from a listed impairment, analysis proceeds to steps four and five. Step
four provides that if an individual is capable of performing past
relevant work, she will not be found disabled.
20 C.F.R. § 404.1520(f). If an individual cannot perform past relevant work,
step five requires the Commissioner to demonstrate that the claimant can
perform other work available in the national economy consistent with her
medical impairments, age, education, past work experience, and residual
functional capacity. 20 C.F.R. § 404.1520(g); see also
Fargnoli, 247 F.3d at 39 (quoting Plummer, 186 F.3d at
"A claimant must demonstrate that he was disabled before his date last
insured in order to be entitled to DIB." 42 U.S.C. § 423(a)(1)(A),
(c)(1)(B); 20 C.F.R. § 404.131(a) (2002); Fitch v.
Barnhart, No. 03-1596, 2003 U.S. Dist. LEXIS 24316, at *11 n.12
(E.D. Pa. Sep. 22, 2003). According to the ALJ, "[a] review of the
[plaintiff's] earnings record establishes that the insured status
requirements of the Act were last met on December 31, 1993." (R. at 19)
Plaintiff agrees that this was her date last insured. PL's Mot. for Summ.
J. at 4 n. 1.
B. PLAINTIFF'S CARPAL TUNNEL SYNDROME
1. There is substantial evidence to support the
ALJ's decision that plaintiff's carpal tunnel syndrome was not
At step one of the sequential evaluation process, the ALJ found that
plaintiff has not
engaged in substantial gainful activity since her accident. (R. at
19) Therefore, the ALT proceeded to step two an evaluation of
whether plaintiff suffered from any severe impairments. At that step, the
ALT found that, prior to her date last insured, plaintiff had severe back
and neck impairments but that her CTS was not a severe impairment. (R. at
Plaintiff argues that the ALJ used the incorrect legal standard when
determining that her carpal tunnel syndrome ("CTS") was not severe. Under
regulations promulgated by the Commissioner, an impairment is non-severe
"if it does not significantly limit your physical or mental ability to do
basic work activities." 20 C.F.R. § 404.1521. Basic work activities
include, inter alia, "the abilities and aptitudes necessary to
do most jobs. Examples of these include walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying or handling."
20 C.F.R. § 404.1521(b). "The Act defines `disability' in terms of the
effect a physical or mental impairment has on a person's ability to
function in the workplace. The regulation adopts precisely this
functional approach to determining the effects of medical impairments. If
the impairments are not severe enough to limit significantly the
claimant's ability to perform most jobs, by definition the impairment
does not prevent the claimant from engaging in any substantial gainful
activity." Bowen v. Yuckert, 482 U.S. 137, 146 (1987)
This functional approach should only be used to screen de
minimus claims. "Step two is a threshold inquiry and only allows
claims that are based upon the most trivial claims to be rejected. An
impairment is found not severe when the medical evidence establishes only
a slight abnormality or combination of slight abnormalities which would
have no more than a minimal effect on an individual's ability to work."
Diaz v. Barnhart, No. 01-0525, 2002 U.S. Dist. LEXIS 12147, at
*15 (E.D. Pa. Mar. 6, 2002) (quoting Social Security Ruling 85-28,
Harper v. Sullivan,
No. 89-4272, 1991 U.S. Dist. LEXIS 2168, at *11 (E.D. Pa. Feb. 22,
When assessing the functional limitations imposed by an impairment,
"[a]n ALJ must give serious consideration to a claimant's subjective
complaints of pain, even where those complaints are not supported by
objective evidence." Mason v. Shalala, 994 F.2d 1058, 1067 (3d
Cir. 1993). However, "[a] claimant's allegations of disabling pain may be
discredited by evidence that the claimant has received minimal medical
treatment." Webb v. Apfel, No. 99-291, 2000 U.S. Dist. LEXIS
14455, at *31 (D. Neb. Sep. 28, 2000) (quoting Singh v. Apfel,
222 F.3d 448, 453 (8th Cir. 2000)); see also Smallwood v. Comm. of
Soc. Sec., No. 02-7222, 2003 U.S. Dist. LEXIS 15668, at *30 (E. D.
Pa. Aug. 18, 2003) (agreeing with finding that "given the severity of the
symptoms [plaintiff] was alleging, the ALJ found that [plaintiff's]
reluctance to change his lifestyle and treat his conditions more
aggressively negatively impacted his credibility as to the actual
severity of pain, fatigue and limitations experienced.").
Plaintiff cites evidence from the record and her own testimony to
establish that her CTS had more than a minimal effect on her ability to
work. Plaintiff primarily relies on a November 10, 1993 nerve conduction
study and electromyogram ("EMG") conducted by Dr. Stephen J. Masceri.
After this examination, Dr. Masceri diagnosed plaintiff with "bilateral
carpal tunnel syndrome, moderate to severe on the right, moderate on the
left." PL's Mot. for Summ. J. at 8. Plaintiff also points to repeated
diagnoses of CTS and its symptoms by her treating physician, Dr. Baldino.
Id. at 12. Finally, plaintiff argues that her own testimony
about "dropping things such as glasses and dishes" is consistent with
Although the ALJ considered plaintiff's evidence of CTS, she determined
that it conflicted with other evidence in the record. Id. at
10. Specifically, the ALJ found that plaintiff had
bilateral carpal tunnel syndrome, but it was not a severe
impairment prior to her date last insured. (R. at 26) In reaching this
conclusion, the ALJ pointed to plaintiff's statements concerning her
daily activities including statements made to Dr. Thakarar during an
evaluation that she was "independent in activities of daily living," and
could do "light housework." (R. at 20, 510) The ALJ also relied upon Dr.
Thakarar's conclusion that an examination of plaintiff's upper
extremities was "unremarkable" and his findings that her muscle strength
was five on a scale of zero to five*fn2 (R. at 22, 510), that plaintiff
was not limited in her ability to reach or handle, and that her
impairment did not limit her dexterity. (R. at 514) With respect to the
CTS, the ALJ also relied upon the testimony of the orthopedist, Dr.
Askin, that a person with carpal tunnel complaints is not necessarily
precluded from work (R. at 23), that the results of Dr. Masceri's EMG
examination were not "strong findings indicating nerve damage," and that
plaintiff's CTS was "easily remediable" by carpal tunnel release surgery.
(R. at 23, 120, 122)
In addition, the ALJ expressed concern about plaintiff's conservative
treatment record. Specifically, the ALJ stated that if the CTS was
severe, plaintiff should have consulted with a specialist and sought more
treatment than the splints she wore at night. (R. at 27) On the same
subject, the ALJ noted that plaintiff's treating physician, Dr. Baldino,
discussed hand surgery with her and referred her to a hand surgeon in
1997, an option that plaintiff did not pursue. (R. at 27) Lastly, on the
issue of CTS, the ALJ pointed to the fact that plaintiff did not mention
that claimed disability in reports she submitted to the Social Security
Administration in October of 1992 and
February 1993. (R. at 23, 178, 184-185)
The determination of severity is made with reference to a claimant's
functional capabilities. See Bowen, 482 U.S. at 146. When
plaintiff's testimony about her activities and the conservative treatment
she received for CTS is considered with the opinion of Dr. Askin, there
is substantial evidence to support the ALJ's conclusion that plaintiff's
CTS did not significantly limit her physical ability to do basic work
activities. Plaintiff's failure to investigate hand surgery or consult a
specialist for her CTS undermines the credibility of her assertions that
CTS limited her ability to function. See, e.g. Goodale v.
Halter, 257 F.3d 771, 774 (8th Cir. 2001), Webb, 2000 U.S.
Dist. LEXIS 14455, at *32. With the exception of plaintiff's testimony,
there is no evidence that plaintiff's CTS limited her range of motion or
muscle strength on her date last insured. See Connor v.
Barnhart, No. 02-009, 2003 U.S. Dist. LEXIS 143 (E.D. Pa. 2003)
(affirming finding that CTS was non-severe when complaints of pain and
numbness were not supported by evidence of reduced range of motion or
muscle strength). In fact, the only physician to examine plaintiff's
muscle strength, Dr. Thakarar, found that her muscle strength measured a
five out of a possible five. (R. at 510)
The Court does not agree with plaintiff's claim that Dr. Masceri's
opinion that plaintiff's CTS was moderate to severe is, in and of itself,
sufficient to establish the severity of plaintiff's CTS. Rep. Brief in
Supp. of PL's Mot. for Summ. J. at 5. The record does not reveal that Dr.
Masceri made this statement with reference to the definition of a severe
impairment in the Social Security regulations. It is impossible to
determine what Dr. Masceri meant by his reference to "severe" because his
diagnosis does not address functional limitations. On this issue, Dr.
Askin stated that the EMG was not a "strong finding for nerve damage" and
that "[b]ased on that
particular finding, you would not recommend any specific treatment
to a patient." According to Dr. Askin, the results of the EMG were "not
an actual proscription to activity." (R. at 118) Dr. Asian's evaluation
of the severity of the CTS provided sufficient evidence to support the
ALJ's opinion that the CTS was not severe.
2. The law of the case did not require the ALJ to
find that plaintiff's CTS was severe.
Plaintiff argues that the Appeals Council reached the conclusion that
plaintiff's CTS constituted a severe impairment, and the ALJ's refusal to
follow this precedent violated the law of the case. Pl.'s Mot. for Summ.
J. at 9. It is not necessary for this Court to determine if the law of
the case doctrine applies in this procedural setting because the Appeals
Council did not make a finding that plaintiff's CTS was severe. To the
contrary, the Appeals Council stated only that "that the evidence of
record is more than sufficient to establish that the claimant had a
severe impairment prior to December 31, 1993, and that further
consideration under the sequential evaluation process is necessary." (R.
This Court disagrees with plaintiff's reading of the passage in
question and concludes that the statement cited by plaintiff does not
mandate a finding that her CTS was severe. In the paragraph cited by
plaintiff, the Appeals Council discusses evidence concerning a June 1988
CT scan of the lumbar spine, a November 1993 MRI of the cervical spine,
and the November 1993 EMG relating to plaintiff's CTS. At the end of this
paragraph, the Council stated that "the evidence of record is more than
sufficient to establish that claimant had a severe impairment prior to
December 31, 1993. . . ." (R. at 556) (emphasis added). The severe
impairment found by the Appeals Council obviously referred to all of the
evidence of plaintiff's ailments in combination
the CTS, the cervical spine injury, and the lumbar spine injury.
The Court also notes that plaintiff appealed the ALJ's decision to the
Appeals Council. When the case returned to the Appeals Council after the
second hearing before the ALJ, the Appeals Council denied review. (R. at
10-11) This Court's conclusion that the Appeals Council did not find that
plaintiff's CTS, standing alone, was severe is supported by fact that the
Appeals Council did not overturn the ALJ's decision with respect to the
severity of plaintiff's CTS. If the ALJ ignored a mandate from the
Appeals Council, the Appeals Council was in the best position to make
this determination, and it did not do so.
3. The ALJ was required to include CTS in the
hypothetical presented to the vocational expert.
Even though the ALJ found that plaintiff's CTS was non-severe, her
finding that plaintiff's back and neck impairments were severe mandated
further analysis under the sequential evaluation process. Plaintiff does
not dispute the ALJ's finding at step three that her impairments did not
match any of the impairments "presumed severe enough to preclude any
gainful work" by Social Security regulations. (R. at 29) At step four,
the ALJ found that plaintiff's impairments prevented her from performing
her past relevant work. At step five, the Commissioner is required to
demonstrate that plaintiff can perform other work in the economy
consistent with her medical impairments, age, education, past work
experience, and residual functional capabilities.
"At the fourth and fifth steps, the ALJ often seeks advisory testimony
from a vocational expert." Burns v. Barnhart, 312 F.3d 113, 119
(3d Cir. 2002). Testimony of vocational experts "typically includes, and
often centers upon, one or more hypothetical questions posed by the
ALJ. . . . The ALJ will normally ask the expert whether, given certain
assumptions about the claimant's
physical capability, the claimant can perform certain types of
jobs, and the extent to which such jobs exist in the national economy."
Id. at 120. "[T]he vocational expert's testimony concerning a
claimant's ability to perform alternative employment may only be
considered for purposes of determining disability if the question
accurately portrays the claimant's individual physical and mental
impairments." Id. at 123. "Where there exists in the record
medically undisputed evidence of specific impairments not included in a
hypothetical question to a vocational expert, the expert's response is
not considered substantial evidence." Id.
Plaintiff claims that the hypothetical question asked of the VE was
inappropriate because it did not include any reference to her CTS.
According to plaintiff, her CTS should have been included in the
hypothetical even if the impairment was considered non-severe. Reply Br.
in Supp. of Pl.'s Mot. for Summ. J. at 4, n.2. On this issue, the Third
Circuit has held that "the ALT must consider the combined effect of
multiple impairments, regardless of their severity." Burnett v.
Commissioner of SSA, 220 F.3d 112, 122 (3d Cir. 2000).
In Connor v. Barnhart, No. 02-009, 2003 U.S. Dist. LEXIS 143
(E.D. Pa. 2003), with facts similar to those presented in this case, the
court remanded the case to the Commissioner because the ALT failed to
include functional limitations posed by non-severe carpal tunnel syndrome
in his hypothetical to the vocational expert. Id. at *19-21.
Plaintiff in Connor complained of numbness and tingling her
left hand. Nevertheless, the ALT concluded the CTS was non-severe because
it "did not appear to reduce Connor's range of motion or strength" or
limit her ability to do basic work activities. Id. at * 19. The
court determined that this assessment of severity was supported by
substantial evidence, but nevertheless ruled that "the ALJ committed
reversible error by failing to consider the vocational effects of this
non-severe impairment." Id. at
*20. According to the court, "[c]arpal tunnel syndrome of one's
non-dominant hand may ordinarily not be disabling, but when considered in
combination with a severe impairment of the other hand, it may very well
be." Id. In Connor, it was "unclear" how the
plaintiff could perform any of the jobs recommended by the vocational
expert because they all required use of her left hand. Id. at
Like the ALJ in Connor, the ALJ in this case found plaintiff
"had bilateral carpal tunnel syndrome since late 1993, but [that] this
was not a severe impairment at any time prior to December 31, 1993." (R.
at 26) As in Connor, the plaintiff in this case described pain
and tingling in her hands but failed to produce any objective evidence of
reduced motion or strength caused by the CTS. Although the ALJ's finding
in this case that plaintiff's CTS was non-severe was supported by
substantial evidence, the Court agrees with the court in Connor
that the failure to include this impairment in the hypothetical to the
vocational expert is reversible error. This omission on the part of the
ALT was particularly significant in this case because all of the jobs
suggested by the vocational expert ticket seller, self service
gasoline station cashier, and ticket taker require manual
dexterity. (R. at 28) Had the ALT included the reference to CTS in the
hypothetical question, the vocational expert might very well have reached
a different conclusion with respect to jobs plaintiff could perform.
Thus, on remand, the ALT should consider the limitations caused by
plaintiff's CTS in combination with her other impairments.*fn3
C. PLAINTIFF'S FUNCTIONAL LIMITATIONS
Plaintiff's remaining objections relate to the ALJ's findings at step
five of the sequential evaluation process concerning plaintiff's
functional limitations and their effect on her ability to work. For the
reasons that follow, the Court sustains the objections relating to the
failure of the ALT to assess the credibility of plaintiff's husband; the
remaining objections are overruled.
1. There is substantial evidence to support the
ALJ's evaluation of the November 3.1993 examination.
Plaintiff argues that the ALT ignored positive findings revealed by a
November 3, 1993 magnetic resonance imaging ("MRI") of plaintiff's
cervical spine and, as a result, overestimated plaintiff's functional
capabilities. PL's Mot. for Summ. J. at 14. Dr. Robert Bronstein, the
radiologist who conducted the MRI, reported: "Posterior osteophytes are
seen at C5/6. These compress the thecal sac and impress upon the spinal
cord and also compress the left neural foramen. I do not see evidence of
disc bulge or herniation at that or other levels. No abnormalities are
seen in the spinal cord." (R. at 521) According to plaintiff, the ALT
cited the negative findings from this MRI without discussing the
osteophytes or compression of the thecal sac, spinal cord, and left
neural foramen. Plaintiff argues that the ALJ should have explained why
she "rejected" these positive findings. PL's Objections to Rep. and
Recommendations at 12.
Plaintiff's interpretation of the ALJ's opinion is contradicted by the
transcript of the hearing. The ALT asked Dr. Askin about the signficance
of the osteophytes, thecal sac
compression, and impression upon the spinal cord. (R. at 135) Dr.
Askin replied that the finding was "neither dispositive of a medical
condition or determinative of a medical condition" and just showed
"degenerative changes" that would be no different for "anyone else
essentially Miss Kuhn's age." (R. at 135) Based on this testimony, and
the deference this Court must give to the ALJ's evaluation of the
evidence, the Court can not say that the ALJ erred in her consideration
of the November 3, 1993 MRI.
2. The treating physician's opinion was not
supported by objective medical evidence.
Plaintiff argues that the ALJ erred when she "refused to credit" the
opinion of plaintiff's treating physician, Dr. Baldino, that plaintiff
was "unable to perform any kind of regular gainful employment." PL's Mot.
for Summ. J. at 18. The Court rejects this argument for a number of
First, a statement by a treating physician that a patient is "disabled"
or "unable to work" is not considered a medical opinion because the
Social Security Commissioner reserves the final responsibility for making
a disability determination. 20 C.F.R. § 404.1527(e). Second, although
a treating physician's diagnosis should be given "great weight," an ALJ
may reject the opinion on the basis of contradictory medical evidence and
may afford the opinion "more or less weight depending upon the extent to
which supporting explanations are provided." Plummer, 186 F.3d
at 429. If the opinions of two doctors are in conflict, the opinion of a
medical specialist should be given greater deference. See Mason v.
Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993). On this issue, in
Stolz v. Massanari, 3 No. 00-4053, 2001 U.S. Dist. LEXIS (E.D.
Pa. July 18, 2001), the court rejected the opinion of the plaintiff's
long term care physician that his patient was disabled
because the doctor's conclusion was contradicted by two
specialists. Id. at *6.
The ALJ in this case acknowledged that "[o]rdinarily, great weight is
given to the opinion of a treating source." However, the ALT noted that
Dr. Baldino's reports were "inconsistent with several objective
diagnostic tests, and appear to be based primarily on the claimant's
subjective complaints." (R. at 25) In particular, the ALT concluded that
Dr. Baldino's reports conflicted with the opinions of two specialists
Dr. Glickman and Dr. Gonzalez. Dr. Glickman, an orthopedic
specialist, "concluded that there was no orthopedic process that would
prevent the claimant from being able to resume her normal activities" in
1989. (R. at 24, 517-20) In 1988, Dr. Gonzalez reviewed a compturized
axial tomography ("CAT scan") of plaintiff's spine and found it to be
"entirely within normal limits." (R. at 24, 516) A 1993 MRI revealed no
evidence of disc bulge or herniation and no abnormalities in the spinal
cord. (R. at. 521) All of these tests were conducted after March 30,
1998, the date of the accident that allegedly caused plaintiff's
injuries. Finally, Dr. Askin testified that, although plaintiff was
limited to light work by her lumbar and cervical impairments, her back
and neck impairments were not as "functionally limiting as she
testified." (R. at 23, 25, 134) The ALT stated, "I assign a greater
weight to the opinions of Dr. Askin, Dr. Glickman, and Dr. Gonzalez, as
their opinions are fully explained and are most consistent with the
objective medical evidence in the record." (R. at 25) The decision to
credit the finding of several specialists that plaintiff was not
completely disabled was supported by substantial evidence in the record.
Plaintiff also states that the ALT disregarded the opinion of Dr.
Thakarar that she could "lift less than ten pounds, and could do less
than two hours of sitting, and less than six hours of standing/walking in
an eight hour day." Pl.'s Mot. for Summ. J. at 19. The ALT rejected Dr.
Thakarar's opinion because it was based on plaintiff's subjective
complaints. Pl.'s Mot. for Summ. J. at 20 (R. at 25) In addition, the ALJ
stated that Dr. Tharkarar's findings conflicted with the narrative
portion of Dr. Thakarar's report and the testimony of the claimant. (R.
at 25) Although Dr. Thakarar's report describes a limited range of motion
in the lumbar spine, he also wrote that plaintiff had a full range of
motion in the cervical spine and that she was "independent in activities
of daily living." (R. at 510) Most of Dr. Thakarar's findings cited by
plaintiff limitations on lifting, sitting, standing, and walking
were recorded on a form. On this issue, the Third Circuit has
stated that "[f]orm reports in which a physician's obligation is only to
check a box or fill in a blank are weak evidence at best." Mason v.
Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993). Because answers
recorded by Dr. Thakarar on the form conflict with the narrative portion
of his report and plaintiff's statements to him, the ALJ was justified in
rejecting the lifting, sitting, standing, and walking limitations noted
in the form.
3. The ALJ properly evaluated the credibility of
Plaintiff contends that her subjective complaints of pain were not
considered by the ALJ. "An ALJ must give serious consideration to a
claimant's subjective complaints of pain, even where those complaints are
not supported by objective evidence." Mason v. Shalala,
994 F.2d 1058, 1067 (3d Cir. 1993). "Where medical evidence does support a
claimant's complaints of pain, the complaints should then be given `great
weight' and may not be disregarded unless there exists contrary medical
evidence." Id. at 1067-1068. Once an ALJ concludes that medical
evidence could reasonably cause the pain described by a plaintiff, the
ALJ must "determine the extent to which a claimant is accurately stating
the degree of pain or the extent to which he or she is disabled by it."
Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). However,
determinations are the province of the ALJ and should be disturbed
on review only if not supported by substantial evidence." Rush v.
Apfel, No. 00-2825, 2001 U.S. Dist. LEXIS 18247 (E.D. Pa. Nov. 7,
In Hartranft, the Third Circuit found that an ALJ's decision
that a claimant could perform light work despite complaints of
incapacitating pain was supported by substantial evidence. Id.
The court based that decision on evidence that Hartranft's complaints of
pain conflicted with the objective medical evidence, Hartranft's
testimony about his rehabilitation and treatment regimen, and Hartranft's
description of his daily activities. Id.
The ALJ in this case acknowledged that plaintiff's "allegations of
physical limitations cannot be assessed by objective medical evidence
alone" but concluded that "the magnitude of [plaintiff's] subjective
complaints is not consistent with many of the objective medical
findings." Pl.'s Mot. for Summ. J. at 25 (R. at 26). Although the ALJ
found plaintiff's testimony "not wholly credible," she stated that "there
[was] some basis in the record for her complaints of pain" and gave "some
weight" to her testimony about pain. The ALJ also relied on plaintiff's
testimony in finding that she suffered from severe back and neck
impairments. (R. at 26) However, the ALJ found that the objective medical
evidence and the testimony of Dr. Askin supported plaintiff's ability to
perform light work despite this severe impairment. As detailed by the
ALJ, plaintiff's claim that she is not able to perform any work is
disputed by evidence from specialists, her failure to seek treatment from
an orthopedist or neuroligist, and her testimony about her daily
activities. (R. at 25-26). Based on the Third Circuit's holding in
Hantraft, the ALJ appropriately evaluated plaintiff's testimony
concerning the magnitude of her functional limitations.
4. The ALJ's failure to assess the credibility of
plaintiff's husband is reversible error.
Plaintiff is correct in stating that the ALT failed to sufficiently
address the credibility of plaintiff's husband. PL's Mot. for Summ. J. at
27. The Third Circuit has ruled that the failure to make a specific
finding about the credibility of a plaintiff's spouse can be reversible
error. Burnett v. Commissioner of SSA, 220 F.3d 112, 122 (3d
Cir. 2000), Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir.
1983). It is an error to make an adverse finding with respect to a
claimant's credibility without addressing the testimony of witnesses that
bolster the claimant's credibility. Burnett, 220 F.3d at 122.
Although plaintiff's husband had difficulty addressing his testimony to
the relevant time period, his testimony corroborates plaintiff's
statements regarding pain and household activities. (R. at 142-43)
Therefore, on remand, the ALT should address the effect of the testimony
of plaintiff's husband on plaintiff's credibility.
5. The ALJ's failure to discuss a report by the
Department of Labor and Industry does not require remand.
Finally, plaintiff argues that the ALJ's should have considered a
finding by a Bureau of Worker's Compensation Referee that she was
disabled. PL's Mot. for Summ. J. at 28. A worker's compensation claim is
evaluated with respect to a different standard of disability. A claimant
in a workers' compensation matter must show only that he is incapable of
returning to his previous employment, while an award of Social Security
requires a finding that the claimant is unable to perform any substantial
work. Rose v. Chater, No. 94-4421, 1995 U.S. Dist. LEXIS 8397
(E.D. Pa. June 13, 1995) (citing Coria v. Heckler,
750 F.2d 245, 247-48 (3d Cir. 1984)). Although the worker's compensation
referee's findings of fact state that plaintiff's "disability continued to
be present," there are no specific findings regarding plaintiff's CTS, back
impairments, or functional limitations. Thus, it is impossible to
determine whether any of the ALJ's findings conflict with those of the
referee. (R. at 126) Given the different legal requirements and the
ambiguity of the referee's decision, this Court finds that the ALJ's
failure to mention the referee's report in her decision does not require
any additional findings.
For the reasons stated above, defendant's Motion for Summary Judgment
is denied. That part of plaintiff's Motion for Summary Judgment in which
plaintiff seeks a remand is granted. The case is remanded to the
Commissioner in accordance with the fourth sentence of
42 U.S.C. § 405(g) for further proceedings consistent with this Order and
Memorandum. In all other respects, plaintiff's Motion for Summary Judgment
is denied. On remand, the Commissioner should incorporate the functional
limitations imposed by plaintiff's carpal tunnel syndrome into the
hypothetical question presented to the vocational expert and address the
impact of the testimony of plaintiff's husband on plaintiff's credibility.